Appeal No. 2005-1598
Application 10/103,162
this art at the time the claimed invention was made.4 Accordingly, since a prima facie case of
obviousness has been established by the examiner, we again evaluate all of the evidence of
obviousness and nonobviousness based on the record as a whole, giving due consideration to the
weight of appellants’ arguments in the brief and the evidence in the specification and in
Declaration Under 37 C.F.R. § 1.132 of Mr. Kittleson (Kittleson declaration)5 to the extent
argued in the brief. See generally, In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984).
In order to review the examiner’s application of prior art to appealed independent claims
37, 53, 64 and 67, we first interpret these claims by giving the terms thereof the broadest
reasonable interpretation in their ordinary usage in context as they would be understood by one
of ordinary skill in the art in light of the written description in the specification unless another
meaning is intended by appellants as established in the written description of the specification,
and without reading into the claims any limitation or particular embodiment disclosed in the
specification. See, e.g., In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364, 70 USPQ2d
1827, 1830 (Fed. Cir. 2004); In re Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027
(Fed. Cir. 1997); In re Zletz, 893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
The plain language of claim 37 specifies a packaged product comprising any manner of
frozen dough or batter product and any manner of packaged topping composition, wherein the
topping composition contains any manner of ingredients to the extent that the composition is
sufficiently fluid at 32°F so that the warmed food product can be dipped to any extent, however
small, into such composition and the composition adheres to any extent, however small, to the
warmed food product. Claim 43, dependent on claim 37, specifies that such a topping
composition can comprise fat, flavoring, water, high-fructose corn sweetener, and water-activity
reducing agent, and claim 47, similarly dependent, specifies weight percent ranges for the same
ingredients, further specifying glycerin as the water-activity reducing agent. The term “water-
activity reducing agent” is defined by appellants as a “humectant,” and it is further disclosed that
4 A discussion of Ludder and of Thota is not necessary to our decision. See In re Kronig,
539 F.2d 1300, 1302-04, 190 USPQ 425, 426-28 (CCPA 1976).
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